The Supreme Court allowed Scrollside Ltd’s appeal against the Broadcasting Commission’s award of a Dublin alternative rock radio contract to Dublin Rock Radio Ltd, trading as Phantom FM. It held that the Commission had failed to consider relevant aspects of Phantom FM’s history of illegal broadcasting when assessing the applicant’s character. The Court did not itself award the contract to Scrollside.
Under the Radio and Television Act 1998, the Commission had to consider ten criteria when choosing the most suitable applicant for a sound broadcasting contract. The Supreme Court said the statutory criterion of “character” includes moral qualities and requires a realistic enquiry into an applicant’s commercial history, including illegal broadcasting. It said efficient operation, expertise and resources were covered by separate criteria.
The judgment recounted that members of the Dublin Rock Consortium operated an unauthorised station under the Phantom FM name from 1998. The station went off air to apply for licences in 1999 and 2001, but resumed illegal broadcasting after both applications failed. It ceased broadcasting in May 2003. The Commission later granted temporary contracts to Wireless Media Ltd and Coxstone Ltd, both trading as Phantom FM.
Dublin Rock and Scrollside were shortlisted in 2004. The Commission decided unanimously in November that year to award the contract to Dublin Rock. Scrollside challenged the decision by judicial review. The High Court rejected its challenge in November 2005, finding that the Commission knew of the illegal broadcasting history and that the weight given to it was for the Commission to decide.
On appeal, the Supreme Court examined the Commission’s records and the evidence of its chief executive, Michael O’Keefe. The judgment said the evaluation and meeting minutes did not show that the Commission considered Phantom FM’s repeated returns to illegal broadcasting after unsuccessful licence applications. O’Keefe’s evidence was that this particular history had not been considered; the Commission had taken account of the fact that Phantom FM had previously broadcast as a pirate and later ceased.
The Court concluded that the Commission had not properly assessed character and that this failure made the contract award unreasonable and irrational. It also found that Phantom FM had benefited from its past illegality in securing the contract, including through material in its application referring to seven years of broadcasting experience and audience feedback. The Court said it was unnecessary to consider the remaining grounds concerning prejudgment, bias or delay.
The judgment allows the appeal on the character-assessment ground. It does not specify a further order in the supplied text.